from the revealed dept

We're happy to announce that we've been able to get our hands on the -- until now -- secret Congressional Research Service analysis of ACTA. You can see it embedded below, and it shows that the language used by the USTR in ACTA has lots of weasel words that let them claim it doesn't impact US law, but the interpretations of the language could very much impact US law. First some background.

A few weeks back, we mentioned that KEI was appealing the fact that the USTR was refusing to release a Congressional Research Service report on the legality of ACTA, claiming that it couldn't release the report because it was controlled by Congress. However, there is little evidence to support that. Not surprisingly, the USTR's response to KEI's appeal was to again deny the FOIA request to release the report, claiming:

The [USTR FOIA Appeals] Committee undertook a comprehensive review of the circumstance of the creation of the document at issue and the conditions under which it was sent to USTR, including through statements provided by members of USTR's Office and Congressional Affairs and Office of Intellectual Property and Innovation. The Committee concludes that Congress intended to retain control over this document and that it is not an agency record subject to FOIA.

What struck us as odd about the whole thing was why KEI was focused on the USTR, rather than Senator Wyden. So we asked Senator Wyden to release the report, and about an hour ago, his office sent us the CRS memo, in slightly redacted form. The redactions are around a specific issue relating to ongoing negotiations over the degree to which patents are covered by ACTA -- the one key sticking point in the remaining negations. The US wants to include a footnote that effectively lets it ignore a key point about patent injunctions, because US law has certain prohibitions on injunctions, and the current ACTA text suggests that all signatories would have to offer up injunctions as a possibility in those cases.

As you read through the document, however, what becomes clear is that nothing is very clear in ACTA, and there are all sorts of weasel words and poorly-defined aspects to the drafting. What that means is that it all depends on the interpretation. If certain sections are interpreted one way, then ACTA clearly conflicts with US law. If they're interpreted in a more permissive fashion, then the US can walk the tightrope and comply with ACTA without having to change US law. But the problem is that it's not at all clear. This leads ACTA supporters to be in a position to say, "well, it doesn't require changes to US law," and then not have to deal with the issue that, down the road, lobbyists (and other countries) will inevitably point to language in ACTA and push the US to change its laws in order to comply. That's the really nefarious part about all of this.

The memo also notes that while technically Congress is not supposed to be restrained by ACTA, the practical realities may be different:

Congress may not feel compelled to take into account the requirements of an agreement that it had no formal role in approving. On the other hand, it may well be that Members of Congress might be reluctant to consider legislative approaches that would alter federal law in a manner that might make the United States in default of its ACTA obligations. The seriousness of such a concern may turn on the extent to which the United States may be held accountable for ignoring its ACTA obligations, or how successful the United States is in convincing other ACTA Parties of its compliance with the ACTA commitments even with such legislation.

In other words, if the US can weasel its way around complaints from other countries and industry lobbyists, it might still be able to fix broken parts of copyright, trademark and patent law... but most folks in Congress probably don't want to bother with that fight. More simply: technically, ACTA probably doesn't constrain Congress, but the political reality is that it absolutely does constrain Congress. But we knew that already.

Most of the other concerns are specific to the language choices used in ACTA. For example, in this section, the CRS researchers note how the drafters try to distinguish rights from enforcement in ways that might not be reasonable or even possible:

Another initial provision in the draft tax declares: "This Agreement shall be without prejudice to provisions governing the availability, acquisition, scope, and maintenance of intellectual property rights contained in a Party's law." Note that this language refers to intellectual property rights (as opposed to remedies for violation of those rights). Thus, this provision allows a Party to have domestic laws that contain exceptions, limitations, and conditions concerning the "availability, acquisition, scope, and maintenance" of IPR. It does not, however, appear to apply to a Party's domestic laws that provide exceptions to the remedies that are available to intellectual property holders that seek to enforce their IPR. Yet it may be difficult in certain circumstances to draw a distinction between a Party's domestic laws that establish rights and those that provide remedies for violation of those rights; if the domestic law clearly concerns the latter, then this provision does not appear to be relevant. For example, a law that specifies that "injunctive relief is not available..." for certain acts of infringement, appears more clearly to be a limitation on available remedies. However, a law that specifies that "it is not an act of infringement to" perform a specific action could be considered a limitation on remedies, or it could also be regarded as an exception, limitation, or condition regarding the availability and scope of IPR.

Really, what becomes clear in all of this is just what a dreadful document ACTA is. It's vague in all sorts of important places, in order to give the USTR and ACTA supporters wiggle room to claim that it is in line with US law, but allow folks in other countries to claim that the US is not in line with ACTA. Agreeing to ACTA is a disaster in waiting. Even if it doesn't technically constrain Congress, it's going to tie us up in a series of ridiculous fights over compliance, and the pressure will clearly be on the US to interpret the provisions in ACTA in the most stringent ways (necessitating changes to US law) to avoid fights over whether or not we've lived up to our "international obligations."

Reader Comments

Welcome to the new world order, bought and paid for by the RIAA, Theater Owners Association, The Writers Guild, IP Lawyers, Copyright Maximists, and any one else that says "to hell with the consumers rights" and/or just pays for access to the USTR an Congress...

The constant refrain from many standing in opposition to ACTA is that the agreement contains glaring inconsistencies/conflicts with US law.

Having read this report some time ago (there are other avenues besides FOIA to secure copies), terms such as "might", "perhaps", "could", "depending upon", etc. do not equate very easily with "does", "do", "unquestionably", etc.

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Except when a document is accepted as an "International Agreement" filled with weasel words, its left to who ever is currently in charge to interpret it, so from the Maxi-mist perspective the current admin loves Hollywood, and they will get all kinds of reforms to law to make us meet the obligation... OR some other country reads it different and accuses us of not living up to the bargain, there fore we must change to come to terms.....
The part i think USTR and Bollywood miss is at some point some administration will come to be that swings the other way and decides to interpret the "agreement" another way, and the pendulum will swing far away from what they want... Or the final one is everyone says this is trash and piss on the document and all who pushed it through - most people do not understand the issues today, turn off their interwebs, or netflicks or Youtubes... yea they will tear it and everything down to get it back...

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The substance of what "complaint"? That is was held close to the chest, and this is somehow nefarious activity? That disclosure was rejected as the document not comprising an "agency record", and thus not subject to mandatory disclosure under FOIA? Other?

To me the far more important point to be addressed is whether or not the CRS document articulated specific sections of ACTA and US law that are actually in conflict. My reading back when I originally received a copy, and my re-reading it once more as a result of this article, failed to identify any provisions of ACTA in direct conflict with US law. As I noted above, "might", "could", "maybe", etc. are hardly the equivalent of "does", etc.

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The substance of what "complaint"?

That it's all weasel language so hardcore ACTA supporters such as yourself can claim -- as you do right here -- that it is in line with US laws... even as the plain language appears to be in conflict based on quite reasonable interpretations.

My reading back when I originally received a copy

From whom did you receive a copy?

and my re-reading it once more as a result of this article, failed to identify any provisions of ACTA in direct conflict with US law. As I noted above, "might", "could", "maybe", etc. are hardly the equivalent of "does", etc.

That's the whole point, isn't it? It lets you pretend there's no issue NOW, but two years from now, when some random country complains and/or some industry lobbyist says we can't pass orphan works legislation because it'll conflict with our ACTA obligations, you'll be the first person here insisting that they're right and we have to comply.

That's the point. That's always been the point. You can read the language to conflict with US law, and you know darn well based on your own background, that it will be used in that manner. Yet, you insist that it's fine now because you support it.

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Dear Anonymous Coward. Are you claim that the following passage from the ACTA article on damages is consistent with all US laws?

"In determining the amount of damages for infringement of intellectual property rights, its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value submitted by the right holder, which may include the lost profits, the value of the infringed good or service, measured by the market price, the suggested retail price."

Are you claiming that all US statutes are consistent with this provision in the ACTA on injunctions?

"1. Each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority to issue an order against a party to desist from an infringement, and inter alia,an order to that party or, where appropriate, to a third party over whom the relevant judicial authority exercises jurisdiction, to prevent infringing goods from entering into the channels of commerce.

Are you claiming that both provisions are consistent with the proposed orphan works legislation?

Or, do you prefer to make vague assertions without getting into the specifics?

The CRS report

I'm reading the CRS report now. As we have indicated before, we did ask Senator Wyden's office for the CRS report, as did MSF, and others, on multiple occasions. The redacted sections deal with patent issues that were resolved by the decision to eliminate the mandate that patents be addressed in the civil enforcement section. CRS explores whether or not a number of the inconsistencies on the copyright side can be justified by sovereign immunity, or by an implied understanding that ACTA members can just make exceptions to the obligations in some areas. In the case of orphan works, it seems clear from the CRS report that the legislation that has been considered in this area is inconsistent with ACTA.

You do know that ACTA is going to pass, right? They've spent too much time and money on it for them to let minor things like people's rights and current laws interfere with it. The entertainment industry wants it and that's all that matters.

There are a large number of theories as to the reasons why a state might decide to sign a non-binding international agreement. (Otherwise known as any international agreement since there are no international cops that can force your country to comply with the agreements it signed) One of the big ones I remember is specifically to bind future governments. The basic idea is that if you break the agreements made by your predecessors, you are taking the risk that when your predecessors become your successors (when the other party gains back control basically) they will repudiate agreements that you made in retaliation. That makes it harder for you to make agreements with those whom you want to open trade relations or ally as those potential partners realize your domestic political situation might make the agreement a short-lived one. So, you leave the agreements of your predecessors alone and pile one extra ones so that when they come back to power, they are now bound by other agreements. Basically, ACTA is just another way to make sure IP maximalists will continue to get their way in the future.